Monday, September 22, 2008

Articles 5 & 6, Explanation of the Draft Constitution of the Khilafah

The following is from the draft english translation of the Arabic book مقدمة الدستور
أو الأسباب الموجبة له (Introduction to the constitution and the evidences that make it obligatory) published by Hizb ut-Tahrir 1382 Hijri (1963 CE). Please refer to the original Arabic for accurate meanings. Please note some of the adopted opinions of the Hizb have changed since the time the book was published so any of the adopted literature published after this book which contradicts what is mentioned in this book abrogates those specific points.

Articles 5 & 6

-All citizens of the Islamic State enjoy the Shari'ah rights and duties.

-The State is forbidden from discriminating between the individuals in terms of rule, judiciary and management of affairs or anything similar. Every individual should be treated equally regardless of race, Deen, colour or anything else.

Explanation and evidences:

These two articles have been drafted in accordance with the rules of the Thimmi and in accordance with the rules pertaining Dar-al-Islam and Dar-al-Kufr. As for the Thimmi, he is he who embraces other than Islam and becomes a citizen of the Islamic State while adhering his faith which is other than Islam. The word Thimmi is derived from the word Thimmah, meaning the oath. Hence, the Thimmi are those to whom we give an oath to treat them according to the terms of peace we made with them, and to proceed in their treatment and in managing their affairs according to the rules of Islam.

Islam has come with several rules pertaining the people of Thimmah, in which it guaranteed for them the rights of citizenship and the imposed upon them the duties of citizenship. Islam also outlined that the Thimmi enjoy the same justice we enjoy and that they should abide by the same rules which we abide by. As for that which they enjoy in terms of justice and fairness, this is derived from the general command reflected in Allah (swt) saying: [4-58] “And if you judge between people that you judge with justice; truly how excellent is the teaching Allah gives you, for Allah is He Who hears and sees everything.”

Also in His (swt) saying: [5-8] “And let not the hatred of others to you to make you swerve to wrong and depart from justice. Be just, that is next to piety and fear Allah, for Allah is well acquainted with all that you do.”

It is also reflected in Allah (swt) saying pertaining the judgement between the people of the book. [5-42]: “If you judge, judge with equity between them; for Allah loves those who judge in equity.”

As for abiding by that which we abide by, this is derived from the actions and sayings of the Messenger of Allah (saw). He (saw) used to exact the same punishment upon the Kuffar and the Muslims. The Messenger of Allah (saw) punished a Jew by killing him for killing a woman. A Jewish couple were brought to the Messenger of Allah (saw) because they committed adultery, so he ordered their stoning to death.

The people of the Thimmah are given by Islam the same protection given to the Muslims. Ahmed extracted in his Masnad on the authority of Abdul-Rahman Ibnu Abi Bakra on that of his father that the Messenger of Allah (saw) said: “He who kills a covenanted person unjustly he shall not find the scent of heaven; its scent is found the distance of a hundred year march.” In the narration of Al-Tirmithi on the authority of Abu Hurayrah that the Messenger of Allah (saw) said: “He who kills a covenanted person enjoying the oath of Allah and the oath of His Messenger, he shall not smell the scent of Heaven; its scent is found the distance of a seventy year march.” Also, a Muslim who had killed a Jew was brought to the Messenger of Allah (saw), so he killed him and said: “We are the worthiest in fulfilling our oath.” People of Thimmah enjoy the same rights as those enjoyed by Muslims in terms of managing their affairs and securing their living. Bukhari extracted on the authority of Abu Moussa Al-Ash’ari ® that the Messenger of Allah (saw) said: “Feed the hungry, visit the poorly and free the prisoner.” Abu Ubaydah said: “Therefore, the people of Thimmah are excluded from Jihad, their prisoners are freed and if they are salvaged, they return to their Thimmah and their oath as free, and there are many Ahadith in this subject.” Abu Dawood extracted on the authority of Ibnu Abbas who said: “The Messenger of Allah (saw) made peace with the people of Najran on condition that they hand over to the Muslims 2000 garments, half to be handed in Safar and the rest in Rajab, also to lend them thirty shields, thirty horses, thirty camels and thirty of each type of weapons, which the Muslims would use in war and would guarantee their safe return; this in case there were a conspiracy or betrayal in Yemen; and on condition that no church of theirs is destroyed, no priest is banished. They would also not be coerced away from their faith provided they did not innovate any matter and they did not deal in usury.” The Messenger of Allah (saw) used to visit the poorly from amongst the Thimmi. Bukhari extracted on the authority of Anas ® that a Jewish valet who used to serve the Messenger of Allah (saw) was once taken ill, so the Messenger of Allah (saw) visited him. This indicates that it is permitted to visit them, be courteous and sociable with them. Ali ® was quoted as saying: “Truly they paid the Jizyah so that their wealth becomes like ours and so that their blood becomes like ours.” Bukhari also extracted on the authority of Amru Ibnu Maymun on that of Omar ® who said: “And commend him that by the oath of Allah and the oath of His Messenger (saw), he should fulfil their oath towards them, to fight on their behalf and not to burden them with more than they could bear.” The Thimmi should not be interfered with in terms of their faith and their rituals, for the Messenger of Allah (saw) said: “He who has embraced Judaism and he who has embraced Christianity, they should not be coerced away from their faith.”

Therefore, the Thimmi are subjects of the State, like any other subjects, enjoying the rights of citizenship, protection, guaranteed living and fair treatment; also enjoying the right of being treated with kindness, leniency and clemency. They can join the Islamic armed forces and fight alongside the Muslims if they choose to do so, but they are not obliged to fight. They are viewed by the ruler and the judge in the same light as the Muslims are viewed without any discrimination in terms of managing their affairs and when implementing the rules of transactions and the penal code upon them. Therefore, the Thimmi enjoys all the rights, equally and exactly as those enjoyed by the Muslim; he is also expected to perform all the duties incumbent upon him, such as the fulfilment of the oath and the obedience of the State’s orders.

This is as far as the rules of the Thimmi are concerned. As for Dar-al-Islam and Dar-al-Kufr, the Messenger of Allah (saw) has deprived the Muslims, who live outside the Islamic State and who are not her subjects, of the rights enjoyed by the State’s subjects. Muslim extracted in his Sahih on the authority of Sulayman Ibnu Buraydah on that of his father who said: “Whenever the Messenger of Allah (saw) appointed anyone as Amir of an army or an expedition, he would especially exhort him to fear Allah and to be good to the Muslims who were with him. He (saw) would say: “Conquer in the Name of Allah and in the Way of Allah. Fight against those who disbelieve in Allah. Conquer and do not embezzle the spoils; do not break your pledge and do not mutilate the dead bodies. Do not kill the children and if you encountered your enemies who are polytheists, invite them to three courses of action. If they respond to any of these, then accept it from them and withhold yourself from doing them any harm. Invite them to Islam; if they respond to you accept it from them and desist from fighting them. Then invite them to migrate from their household to the household of the Muhajireen and inform them that if they do so, they shall have all the privileges and obligations of the Muhajireen. If they refuse to migrate, tell them that they will have the status of Bedouin Muslims, but they will not get any share from the spoils of war or Fai’ except when they actually perform Jihad with the Muslims…” This Hadith clearly indicates that he who does not migrate to Dar-al-Islam, he will not enjoy the citizenship rights even if he were a Muslim. The Messenger of Allah (saw) invited them to come under the authority of Islam so that they may enjoy what the Muslims enjoyed and undertake the obligations which the Muslims undertook, for he (saw) said: “Then invite them to migrate from their household to the household of the Muhajireen and inform them that if they do so, they shall have all the privileges and obligations of the Muhajireen.” This is a Shari'ah text stipulating that they should migrate to Dar-al-Islam in order to enjoy the same rights and fulfil the same obligations which apply to us, i.e. in order to be governed by the rules. Therefore, the Muslim who lives in Dar-al-Harb is not subjected to the rules; thus, he will not be granted the right of citizenship, for this can only be acquired by the individual if he moves to Dar-al-Islam, and he will be deprived of this right if he lived in other than Dar-al-Islam. The rules are also implemented upon the Thimmi who lives in Dar-al-Islam and he will be granted the right of citizenship because he has chosen to settle in Dar-al-Islam.

The individual’s residence in Dar-al-Islam or in Dar-al-Kufr is referred to as fellowship. Hence, a person’s fellowship means the household which he chooses as his residence; is it Dar-al-Islam or Dar-al-Kufr? if it were Dar-al-Islam, then the rules of Dar-al-Islam would be implemented upon it, and in this case a person would be a holder of an Islamic fellowship. If it were Dar-al-Kufr the rules of Dar-al-Kufr would apply upon it, and the person living there would not be considered as holder of an Islamic fellowship. Therefore, he who takes up Dar-al-Islam as his residence, he will be holding the Islamic fellowship, whether he is a Muslim or a non Muslim.

It is forbidden to discriminate in any way between those who hold the Islamic fellowship, due to the generality of the evidences pertaining the ruling and judicial matters and management of affairs. Allah (swt) says: [4-58] “And if you judge between people that you judge with justice…” This is a general address that applies to all people, Muslims and non Muslims alike. Furthermore, the Messenger of Allah (saw) said: “The evidence must be submitted by the plaintiff and the oath must be delivered by the defendant who denies the charge.” This is also general and it applies to Muslims and non Muslims alike. Abu Dawood reported on the authority of Abdullah Ibn Zubayr who said: “The Messenger of Allah (saw) has decreed that the two disputing parties should both sit before the judge.” This is also general and it includes any two disputing parties, Muslims and non Muslims alike. In the narration of Bukhari, it was reported that Abdullah Ibnu Omar said: “I heard the Messenger of Allah (saw) say: “You are all guardians, and each one of you is responsible for his guardianship. The Imam is a guardian and he is responsible for his subjects.” The term “subjects” is general and it includes all the subjects, Muslims and non Muslims alike. Likewise, all the general evidences related to citizenship indicate that it is forbidden to discriminate between the Muslim and the non Muslim, or between the Arab and the non Arab, or between the white and the black. All the people who hold the Islamic fellowship should rather be treated equally, without any discrimination between them either by the ruler, in terms of looking after their affairs and in terms of protecting their lives, their honour and their wealth, or by the judge in terms of equality and justice.

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